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Employee Misconduct

Misconduct In The Workplace – Australia

Misconduct is improper behaviour in the workplace.

Types Of Misconduct

Misconduct may be classified in many ways. However, in many cases, it is codified as follows:  

General Misconduct

General Misconduct is behaviour that is inconsistent with employee obligations or duties; a breach of company policy or procedure; or generally unacceptable or improper behaviour. Examples include unauthorised absences, lateness and bad language.

Serious or Gross Misconduct

The Fair Work Act 2009 refers to (and defines in the accompanying regulations) serious misconduct, so that is the term used most frequently rather than gross misconduct. The term gross misconduct was used historically.

The Fair Work Regulations  2009 define serious misconduct as wilful and deliberate behaviour that is inconsistent with the continuation of the employment contract or causes serious and imminent risk to the reputation, viability or profitability of the business, or health and safety of a person. It includes theft, fraud, assault, intoxication at work or failure to follow a lawful and reasonable instruction that is in keeping with the employee’s contract of employment.

If an act of misconduct is deemed serious enough – even for a first offence – if substantiated, the employee may be dismissed without notice or pay in lieu of notice. This is called summary dismissal. When this happens, the employee has to leave the workplace immediately following the disciplinary process and outcome being issued. Prior to an immediate dismissal, a fair process still needs to be followed. You should be consistent in how you respond to an act of serious misconduct.

To reduce the risk of confusion or misunderstanding, and to set employee expectations, it is recommended that you include policies on standards of behaviour, misconduct and disciplinary action in your employee handbook. An employee handbook is a document usually given to employees when they start work which outlines your company’s policies, culture, and expectations of behaviour and performance in the workplace. A policy regarding disciplinary action might also include relevant examples and outline the disciplinary procedure in detail, as well as the possible consequences. It is also recommended that you specify in your employment agreements that misconduct may be grounds for the termination of employment.

The distinction between the two is important as it may impact the disciplinary procedure (you may need to stand the employee down with pay if there is a risk of harm to a person or the business) and serious misconduct can result in summary dismissal, ie. dismissal without an entitlement to a notice period.

Understanding Disciplinary Action

Free guide to useful tips on dealing with misconduct and setting up a disciplinary process.

Out of Hours Conduct

Only in exceptional circumstances will an employer have any right to address an employee’s out of hours behaviour. An employer can include provisions in the employment contract and policies in the employment handbook, that set certain standards of behaviour when performing work duties outside of work and at work functions, or that prevent an employee from wearing work clothes with a company logo out of work, or from posting disparaging comments about the business on an online site with public access.

The provision or policy should indicate the consequences of any breach of the employment contract or employment handbook, ie. that a disciplinary procedure will follow that may have consequences for the employee’s employment.

There must a relevant connection to the employment relationship for the employer to take any action against the employee. The conduct must be likely to cause serious damage to the relationship between the employee and employer or damage the employer’s interests. The employer must provide actual evidence of how the conduct effects the company.

Managing Employee Performance

To reduce the risk of misconduct and repeated misconduct, your employees should be aware of what the expectations are in respect to how they are expected to behave, the standard of performance that needs to be maintained, and how to align behaviour and performance with the objectives and values of the business.

There are many ways you can manage and improve employee performance. The key is to be consistent and ensure that the system is getting the desired results. If that fails to occur, continue to rework the process until you achieve an optimal result.

Below are some effective ways to manage and improve employee performance:

  • conduct regular performance appraisals and reviews
  • provide relevant training and coaching
  • give employees a platform to provide honest feedback – without fear of retribution
  • set clear expectations – verbally and in writing – in regard to conduct, performance standards, and company goals
  • use employee feedback to update company policies and agreements
  • be sure management is consistent in how they follow company policies

Employee Disciplinary Action

If one of your employees engages in serious misconduct, you may have reasonable grounds to dismiss that employee without notice or pay in lieu of notice, after first implementing a disciplinary process.

If you are required to undertake disciplinary action, here are some easy steps you can choose to follow:

  • Investigate and establish the facts and consider suspension of the employee on full pay if the alleged conduct amounts to serious misconduct or there might be a reasonable threat to persons, property or the business.
  • Write to the employee outlining the allegations, the possible ramifications if the misconduct is proven, the date and time for the disciplinary meeting, and the fact that the employee is entitled to bring a support person.
  • The employee should be provided with a reasonable opportunity to prepare for the meeting. The standard should be at least 24-48 hours’ notice.
  • The meeting is the employee’s opportunity to present extenuating circumstances ( if any) and the employer should close the meeting to take time to consider or further investigate the employee’s responses  before deciding on the balance of probabilities if the allegations are substantiated.   
  • Consider the most appropriate outcome. A warning may be appropriate in the circumstances, or other outcomes, such as a letter of concern, reprimand, no action, final written warning, verbal warning, or even termination may be justified.

You can keep track of employee records and all the documents that form part of the investigation and the disciplinary process and store them securely in the cloud with BrightHR.

Employsure can help you better understand general and serious misconduct. Call us for free initial advice on 1300 207 182.

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Employsure is one of Australia’s largest workplace relations advisers to small- and medium-businesses, with over 29,000 clients. We take the complexity out of workplace legislation to help small business employers protect their business and their people.

Frequently Asked Questions

  • What Is The Definition Of Misconduct At Work?

    Deliberate behaviour contrary to the business policies or procedures.

  • What Is Considered Misconduct In The Workplace?

    Misconduct in the workplace can present itself in multiple ways – some acts are easier to identify than others. It is important to be vigilant and address acts of misconduct early before it escalates.

    Below are some common examples of general misconduct in the workplace:

    • misuse of computers
    • frequently late
    • unexplained absences
    • failing to meet performance standards
    • poor presentation – such as a messy appearance, wearing unclean clothes
    • making personal calls on the company phone
    • inappropriate behaviour that impacts work and/or other employees

    The degree of misconduct depends on the industry, business, and nature of the role. For example, an employee hired to oversee social media management will be on social media for majority of their day. This, however, will not be the case for their colleagues. So, while there are clear examples of misconduct, there are also exceptions that require a discerning approach.

  • What Is Considered Serious Misconduct In The Workplace?

    Serious misconduct is behaviour in the workplace that is contrary to the continuation of ongoing employment, or that is a threat to a person or the business, often an illegal or dangerous activity or safety breach.

  • What Are Examples Of Serious (Or Gross) Misconduct?

    Some examples of negative behaviour that can be classified as serious misconduct include:

    • Deliberate Damage to Company Property or Acts of Vandalism
    • Fraud or Deceptive and Dishonest Behaviour
    • Theft
    • Breaches of Safety
    • Intoxication at work.
    • Threats or Acts of Violence
    • Bullying or Harassment
    • Failure to follow a Lawful and Reasonable Instruction consistent with the employee’s contract of employment.
  • How Do You Identify Serious Misconduct?

    Serious Misconduct must meet the definition in the Fair Work Regulations.

    As this is a complex matter, if you suspect your employee of serious misconduct, call us for free initial advice.

  • Can An Employee Be Fired For Misconduct Outside Of Work?

    It depends whether there is evidence of a relevant connection to the business and its activities.

  • What Are The Types Of Disciplinary Action Outcomes?

    If, after a fair process, the allegation of misconduct has been substantiated, the employer can consider the following outcomes, whilst taking into account the employee responses and any extenuating circumstances:

    • Written warning
    • Letter of concern
    • Reprimand
    • No action
    • Final written warning
    • Verbal warning
    • Termination (eg. if serious misconduct, or after repeated warnings for the same or similar conduct)

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